NCCA Exec. Director replaced while abroad on official business

Former National Commission for Culture and the Arts (NCCA) Executive Director Malou Jacob was officially representing the country at the 5th World Summit on Arts and Culture in Melbourne, Australia, when she learned that the NCCA Commissioners, at a special meeting, had resolved that she be removed from her post immediately. She was told of the decision via e-mail on October 4, the same date that she delivered a paper on Philippine cultural policy before an international audience.

The agency designated Adelina Suemith, head of the Program Monitoring and Evaluation Division, as Officer-in-Charge, and advised Jacob to hand over all pending matters to Suemith at once, although Jacob would be away until October 8. She was also asked to take away her personal belongings and return all government property in her custody as soon as possible.

The replacement of Jacob, a multi-awarded writer and director, as well as a veteran administrator, occurred about a month after the Civil Service Commission (CSC) informed the NCCA that it was disapproving the renewal of her temporary appointment. The CSC pointed out that her lack of civil service eligibility disqualified her from holding the position of Executive Director.

Taken aback

The reason that Jacob was given such short notice to clear out, and while she was abroad at that, is not presently apparent. “Why was the Board’s decision immediate? I have no idea,” she said.

Questions on the matter sent to the Public Affairs and Information Office of the NCCA have so far gone unanswered.

The Commission had appointed Jacob to Executive Director on March 12, 2010 for the period of one year, and had initially approved the renewal of her term for another year in spite of her ineligibility. Jacob succeeded controversial theater stalwart Cecile Guidote-Alvarez, one of four individuals upon whom President Gloria Macapagal-Arroyo, in an unprecedented exercise of presidential prerogative, conferred membership into the Order of National Artists in 2009, setting off a furor that raged all the way to the Supreme Court, where it smolders to this day, awaiting resolution.

While she assured the Commission that she would respect the move, Jacob acknowledged that she was taken aback at its “submission” to the CSC ruling, which was issued in September.

Reacting to the ruling in a letter to the Board that she later disseminated online, including her Facebook account, Jacob said she believed that she was Executive Director because of her vast experience as an artist and as an administrator. She urged the Commission “to enlighten the CSC” and propose a set of equivalency criteria for the post of Executive Director, asserting that the qualifications for Executive Director should not be based on civil service eligibility, but rather on whether one was a seasoned artist and cultural worker respected by one’s peers and rooted in the artistic community.

In a statement addressed to her fellow artists and cultural workers, which she circulated together with her letter, Jacob said, “This is not about me. This is about the right of the artist to lead the highest culture and arts office of the land.”

Prior to joining the NCCA as Deputy Executive Director in 2008, Jacob had served in government with the Cultural Center of the Philippines (CCP) for nine years, starting in 1987, as the head of its Visual, Literary, and Media Arts Department.

Jacob at a protest rally staged on behalf of artist Ericson Acosta, who was arrested without a warrant and has been detained since February this year. Courtesy of Jacob's Facebook account.

Legal issue

Barring the formulation of equivalency criteria by the NCCA and the acceptance of such criteria by the CSC, the case of Jacob points up a legal issue that may have to be resolved in court.

According to Section 38 of the latest Implementing Rules and Regulations (IRR) of Republic Act No. 7356, the law that established the NCCA, “The qualification of the Executive Director shall be set by the Commission in conjunction with existing Civil Service Rules and Regulations”. This would seem to classify the position of Executive Director as a career service position, as well as explain the involvement of the CSC in approving or disapproving appointees.

Section 36 of the same IRR, however, authorizes the Commissioners to appoint the Executive Director, who then becomes part of the Board, by virtue of the provisions of Republic Act No. 7356. The Executive Director, being a non-ex-officio member of the Commission, has a three-year term of office, and may not serve more than two consecutive terms.

Per Executive Order No. 292, also known as the Administrative Code of 1987, a career service position is characterized by the following: “(1) entrance based on merit and fitness to be determined as far as practicable by competitive examination, or based on highly technical qualifications; (2) opportunity for advancement to higher career positions; and (3) security of tenure.”

A non-career service position, on the other hand, is described in this manner: “(1) entrance on bases other than those of the usual tests of merit and fitness utilized for the career service; and (2) tenure which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made.”

Given the power of the Commission to appoint the Executive Director, the intimacy of the Executive Director to the Commission—the Executive Director, in fact, is himself or herself a Commissioner—and the fixed term of office that the Executive Director has, the nature of the position could allow for the so-called proximity rule to be invoked.

Proximity rule

Derived and developed from De los Santos v. Mallare, the proximity rule is used to determine if a position may be classified as primarily confidential. Because a primarily confidential position is a non-career service position, passing the civil service exam or similar tests need not be required for a person to assume that position.

A recent case that applied of the rule is Civil Service Commission v. Nita P. Javier, which was decided by the Supreme Court en banc on February 22, 2008. In the decision penned by Associate Justice Ma. Alicia Austria-Martinez, a position is considered primarily confidential when “there is a primarily close intimacy between the appointing authority and the appointee”, and when said position is not separated from the appointing authority “by an intervening public officer, or series of public officers, in the bureaucratic hierarchy”.

Meanwhile, the NCCA is still in need of an Executive Director. Interested applicants may visit the NCCA web site for details.

Jay Salazar

Jaime Oscar M. Salazar has been blogging intermittently since 2002. He lives and works in Metro Manila. His personal blog is Random Salt.

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